How to Conduct Interviews Lawfully and Not Get Sued!

Recruiting good employees is a difficult job, and if not done properly, the process can create liability for discrimination claims. Most employers are aware of the blatant discriminatory questions that you are not supposed to ask, but many get in trouble by asking apparently innocent questions in the wrong way. Here are some suggestions for both verbal interviews as well as written job applications:

SUBJECT:

HOW NOT TO ASK:

AN ACCEPTABLE WAY TO ASK:

Name:

“Why was your name changed?”
“What’s your maiden name?”“What is the name of your spouse, children, parents?”

“Have you ever used any other names so that we may conduct the appropriate background checks?”
“If you are a minor, please provide the name and address of your parents or guardian.”

Birthplace:

“Where were you (your spouse, parents) born?”
“Can you provide a birth certificate or naturalization papers?”

“Where do you reside?”
“How long have you lived in the city where our company is located?”

Residence:

“Do you own your own home?”
“Do you rent an apartment?”

“What is your address?”
“In what city do you live?”

Creed and Religion:

“What is your religious affiliation?”
“What church, parish, synagogue do you attend?”“Will any of your religious beliefs prevent you from working on certain days?”

“ Here are the regular work days and hours for the job position in question as well as a list of holidays which
our company observes and any other time-off policies…”

Race, Color, Physical Appearance:

“What is your race?”“What is the color of your skin, eyes, hair, etc.?”“What is your height, weight?”“Can you provide us with a photograph along with your application or upon hire?”

Unless there is a bona fide occupational requirement, do not ask these questions.

Education:

“When did you receive your degree, diploma?”
“What were the dates of attendance of high school, college, etc.?”

“Please list the schools you have attended and degrees, diplomas
received.”

Age:

“What is your date of birth?”
“What is your age?”“When did you graduate from high school/college?”

“Employment with our company is subject to verification that you meet
the legal age requirement.”“ If hired, can you furnish proof of age?”“ Are you over 18 years of age?”“ If under 18, can you submit a work permit once employed?”“ If under the age of ___, you may not qualify for participation
in our retirement plan.”

Citizenship:

“Are you or do you intend to become a citizen of the United States?”
“Can you produce naturalization papers or a green card?”

“Once hired, can you furnish verification of your legal right
to work in the United States?”

“Our company has client who speak French/Russian/Spanish. Do you speak
that language?”

Relatives:

“What is the name and/or address of a relative we may contact as a reference or in case of an emergency?”

“What is the name and/or address of a person we may contact as a reference or in case of an emergency?”
“What are the names and job positions of any relatives that currently
work for our company?”

Military Experience:

“Have you served in any military other than the U.S. Armed Forces?”
“Are you a member of the National Guard or the Reserves?”“What is your draft classification?”“Are you eligible for military service?”

“Do you have any experience in the U.S. Armed Forces? What relevant
skills have you acquired?”
“Have you received any notice to report for duty in the U.S. Armed Forces?”

Sex, Marital, or Family Status:

“What is your sex?”
“What is your marital status?”“How many children do you have?”“Have you made provisions for child care?”“Are you pregnant, when do you plan on having children?”“With whom do you live?”

“Our company pays for medical insurance for employees only. Anyone with dependents may cover those individuals by paying the additional premium cost.”
“Here are the regular work days and hours for the job position in question.
Are you able to work at those times on a regular basis?”
“If you are a minor, please provide us with the name and address of a parent or guardian.”

Sexual Orientation:

“With whom do you live?”
“What is the relationship between you and your emergency contact person?”

“What is the name and/or address of a person we may contact as a reference or in case of an emergency?”

Arrest Record:

“Do you have an arrest or conviction record?”
“Do you have any misdemeanor convictions for possession of marijuana that are more than two years old?”

“Have you ever been convicted of a felony or misdemeanor? Have you
had any such charges brought against you that were later reduced, dismissed, or not adjudicated due to pre-trial intervention? (YES answers may be relevant if job-related, but do not necessarily bar you from employment).”

Mental / Physical Disability or Medical Condition:

“What is your general medical condition?”“Do you have any physical or mental disabilities?”“Have you ever filed for workers’ compensation?”

“Are you able to perform the essential functions of this job?”If the applicant voluntarily discloses a disability, you
may then ask, “Can you perform the essential functions of this job with reasonable accommodation?”
“Employment with our company will be contingent upon passing a job-related physical exam.”

Organizations / Activities:

“Please list the names of any organizations, clubs, societies to
which you belong.”

“Please list all the job-related or professional organizations to which you belong. In this list, please omit any organizations whose name would identify you as a member of a protected category.”

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Mark D. Klein, Esq. is the founding attorney at Lighthouse Legal Services, a Southern California-based law firm providing legal assistance to businesses and individuals alike. Lighthouse Legal Services provides an extensive range of legal services aimed at helping clients with issues involving corporate law, business law, intellectual property matters and estate planning while actively working with entrepreneurs starting business ventures and those purchasing or selling businesses.

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